Introduction
The Vienna Convention on Diplomatic Relations of 1961 is a treaty which gives a framework that governs diplomatic relations among different independent states in the world. It was a milestone in strengthening inter-state relationships. Ratified by 187 countries (http://en.wikipedia.org/wiki/ViennaConvention), the Convention specifies the privileges of a diplomatic mission that enable diplomats to perform their functions without fear of coercion or harassment by the host country. This forms the legal basis for diplomatic immunity and its articles are considered a cornerstone of modern international relations. According to the pre-amble to the Convention, the document boasts of a near-universal participation by sovereign States and the high degree of observance among State parties due to the influence it has had on the international legal order.
It also claims to be the most successful of the instruments drawn up under the United Nations framework for codification and progressive development of international law, and that its success is due not only to the excellence of the preparatory work by the International Law Commission and the negotiating skills of State representatives at the Conference, but also to the long stability of the basic rules of diplomatic law and to the effectiveness of reciprocity as a sanction against non-compliance. This analysis gives a detailed coverage of the Vienna Convention on Diplomatic Relations of 1961, with regard to membership, reasons for its formation, its constitution and provisions among other aspects of international relationships. In order to carry out this task comprehensively, the key provisions of the 1961 Vienna Convention on Diplomatic Relations are summarised, followed by a critical analysis of the convention itself. The conclusion is basically in unison to the views of many scholars and writers, who have highlighted a number of reasons why the Vienna Convention is considered one of the most successful multilateral treaties of the modern age. Historical Background to the Convention
The function of diplomats, which is to negotiate agreements between states, demands certain special privileges and it is given that throughout the history of sovereign nations, diplomats have enjoyed a special status.
Sourobh Bordoloi (2013), states that an envoy from another nation is traditionally treated as a guest, their communications with their home nation treated as confidential, and their freedom from coercion and subjugation by the host nation treated as essential. He goes on further to explain that the first attempt to codify diplomatic immunity into diplomatic law occurred with the Congress of Vienna in 1815. It was an international convention which was convened in order to restructure Europe after the collapse of Napoleon I from September 1814 to June 1815. Several decisions were made during the conference most of which were to affect the functioning of some territories. (Citing Murty, 1989), Sourobh Bordoloi (2013), believed that the main purpose of the Congress of Vienna was to create equality and balance of power and preserve peaceful coexistence among nations. The recommendations of the conference were to deal with many issues including revolutionary wars and the downfall of the Roman Empire. As a result, there was to be redrawing of maps and adopting new boundaries that would define territorial space.
The conference was attended by several states including but not limited to Germany, Netherlands, Russia, Britain and France. It is regarded as the first occasion of its kind where continental leaders came together to agree and adopt treaties which were to shape future continental and inter-state relationships. The Vienna Congress was followed much later by the Convention regarding Diplomatic Officers in Havana in 1928. Both these meetings never yielded spectacular results as compared to the 1961 Convention. The League of Nations also tried to promote regulations for a successful codification of international law and diplomatic law but was left without the necessary influence due to its failure to prevent the outbreak of World War I. However, after the war in 1945 the codification movement gathered momentum with the foundation of the United Nations, and the establishment within its framework of the International Law Commission opened the way to comprehensive codification. (http://www.essaysprofessors.com/samples/Analysis/Vienna-convention-on-DiplomaticRelations). According to Eileen Denza (2008), The 1961 Vienna Convention on Diplomatic Relations or on the treatment of diplomats was the outcome of a draft by the International Law Commission. Its priority that came into play in the 1950’s was to oversee the codification of the international law.
The Commission was asked to take up the idea with urgency under the Chairmanship of Mr. Sandström of Sweden, whose report formed the basis of the draft articles which were to be adopted in the year 1957 (Citing Hardy, 1968). After the adoption of these articles, they were debated in the General Assembly before they were sent to all United Nations Member States. Comments came in from up to twenty one (21) countries which were put into account in 1958 before revised articles were formulated to form part of the convention that was endorsed by the General Assembly. A total of eighty one (81) states participated in the Conference in Vienna that started on March 2, 1961 before culminating in its adoption and signing on April 18, 1961.
The success of the conference was attributed to a number of factors. The first was the stability of rules which regulated international relations. For over two hundred years of history, the laws fostered peaceful relationships. Although there were changes in its structure with regard to establishment of embassies and communication, the main structure of law covering negotiations, protection of state interests and maintenance of information links remained unchanged. The second factor that led to the success of the convention was the mutual consent of every nation that was involved. As a result both countries were to benefit either as receiving or sending State. The treaty was adopted on April 18, 1961, by the United Nations Conference on Diplomatic Intercourse and Immunities held in Vienna, Austria, and first implemented on April 24, 1964. Summarised Key Provisions
The Vienna Convention provides a complete framework for the establishment, maintenance and termination of diplomatic relations on a basis of consent between independent sovereign States through its various articles. It specifies the functions of diplomatic missions, the formal rules regulating appointments, declarations of persona non grata of a diplomat who has in some way given offence, and precedence among heads of mission. It sets out the special rules, privileges and immunities which enable diplomatic missions to act without fear of coercion or harassment through enforcement of local laws and to communicate securely with their sending Governments. It also makes provision for withdrawal of a mission which may take place on grounds of breach of diplomatic relations which may occur in response to abuse of immunity or severe deterioration in relations between sending and receiving States. In either of these cases or where permanent missions have not been established, a framework is provided for the interests of each sending State to be protected in the receiving State by a third State. For example; the Zambian embassy in Nigeria also takes care of Zambian diplomatic relations with Ghana. Article 22 confirms the inviolability of mission premises, barring any right of entry by law enforcement officers of the receiving State and imposing on the receiving State a special duty to protect the premises against intrusion, damage, disturbance of the peace or infringement of dignity.
Even in response to abuse of this inviolability or emergency, the premises may not be entered without the consent of the head of mission. Article 24 ensures the inviolability of mission archives and documents, so that the receiving State may not seize or inspect them or permit their use in legal proceedings. Article 27 guarantees free communication between a mission and its sending State by all appropriate means, and ensures that the diplomatic bag carrying such communications may not be opened or detained even on suspicion of abuse. Given the purposes of diplomatic missions, secure communication for information and instructions is probably the most essential of all immunities. Article 31 establishes diplomats’ immunity from civil and criminal jurisdiction. Immunity from jurisdiction, like other immunities and privileges, may be waived by the sending State. Article 34 and 36 sets out the tax exemption accorded to diplomats along with detailed exceptions in respect of matters unrelated to their official duties and exemption from customs duties on diplomatic imports throughout a diplomat’s posting respectively. Articles 37 and 38 set out complex codes for the treatment of families and junior staff of the mission and bar them from all privileges and immunities, except for immunity for their official acts. These two provisions have reduced the numbers of those persons more likely to bring into disrepute the system of privileges and immunities. An Analysis of the Key Provisions
The success of the Vienna Convention rests solely in promoting international diplomatic relations among states in the world. With only 22 ratifications at the time of its adoption, it currently enjoys a following of almost every State in the world. This is so although there is need to establish legislation in a number of states in the world. It has created a homogeneous and coherent way of dealing with issues of international relationships.
Nevertheless, the Convention has also received resistance and attack especially in terms of conflicts. This was witnessed in 1980 after the shooting of an officer from Libyan space in the United Kingdom (http://www.essaysprofessors.com/samples/Analysis/Vienna-convention-onDiplomatic Relations, Citing Brody and Ratner, 2000). It led to a break up of the relationships between the two nations leading to the termination of Libyan mission to the UK. Just as there are always individuals breaking the law, so are there states to break the Conventions. According to BBC News, The Indian Supreme court ruled on 19 March 2013 that the Italian ambassador Mr Daniele Mancini would not leave India after Rome refused to send the Italian marines back to India to face trial following a home visit. The marines are alleged to have killed two Indian fishermen.
There have been questions by scholars around the globe over the conflict which has continued to arise between diplomatic immunity and the access to justice by human beings. Despite this minimum resistance and international attack such as those described above, diplomatic immunities have remained intact with immunity rules giving legal direction. www.essaysprofessors.com, argues that there is no doubt that the Vienna Convention is one of the most supported treaties in the world, having fostered the realization of peace among rival and even warring nations in the world and that public interest has shifted to the security and vulnerability of diplomats who serve in other countries. History has witnessed the attack of various ambassadorial premises and even officials, raising alarm over the security of diplomats (Citing Barker, 2006).
Bombings of the US embassies in Kenya and Tanzania resulted into loss of innocent lives and destruction of property, and that besides terrorist attack and threats, some diplomats have fallen victims of kidnapping as in a case when US diplomatic officers were held hostage in Tehran, Iran for over a year. The Vienna Convention on Diplomatic Relation of 1961, according to www.essaysprofessors.com, has also received practical application in national courts for which the cases mostly involve conflicts over the protection of human rights versus maintaining the dignity of diplomatic premises. The Convention has also been used as a tool for formulating future treaties like the 1963 Vienna Convention on Consular Relations and New York’s Convention of 1969 which was based on Special Missions. The Convention has also been used by some international organizations to define
